Opinion
310-, 311 Index No. 655565/20 Case Nos. 2022-03189, 2022-03537
05-25-2023
CITIZEN WATCH COMPANY OF AMERICA, INC., Plaintiff-Respondent, v. ZAPCO 1500 INVESTMENT, L.P., Defendant-Appellant.
Ahmuty, Demers & McManus, Albertson (Glenn A. Kaminska of counsel), for appellant. Kane Kessler, P.C., New York (Arthur M. Rosenberg of counsel), for respondent.
Ahmuty, Demers & McManus, Albertson (Glenn A. Kaminska of counsel), for appellant.
Kane Kessler, P.C., New York (Arthur M. Rosenberg of counsel), for respondent.
Kapnick, J.P., Friedman, Gesmer, Mendez, Pitt–Burke, JJ.
Judgment, Supreme Court, New York County (Andrea Masley, J), entered August 10, 2022, rescinding and terminating the lease between the parties, and bringing up for review an order, same court and Justice, entered on or about July 5, 2022, which, upon a finding that defendant had failed to comply with an interim order conditionally striking the answer, granted plaintiff's motion to strike defendant's answer, unanimously affirmed, without costs. Appeal from aforesaid order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
The order striking the answer was entered after the court found that defendant failed to comply with the provisions of a conditional order striking the answer unless defendant complied with specified discovery demands within a specified time. The conditional order was issued following a prolonged period in which defendant provided partial but inadequate responses to outstanding discovery demands and orders, as well as a stipulation entered into between the parties. CPLR 3126 authorizes trial courts to craft self-executing orders that impose discovery sanctions on a party unless that party submits to the disclosure within a specified time ( Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 80, 917 N.Y.S.2d 68, 942 N.E.2d 277 [2010] ). Conditional orders become "absolute" upon failure to fully comply therewith ( Casas v. Consolidated Edison Co. of N.Y., Inc., 116 A.D.3d 648, 648, 987 N.Y.S.2d 15 [1st Dept. 2014] ). Defendant's arguments that its noncompliance was not willful or contumacious is irrelevant because, where a litigant fails to comply with a conditional order "the court [is] not required to find that [its] failure to comply was willful" ( Center Sheet Metal v. Cannon Design, Inc., 185 A.D.3d 507, 507–508, 125 N.Y.S.3d 547 [1st Dept. 2020] ; see Keller v. Merchant Capital Portfolios, LLC, 103 A.D.3d 532, 533, 962 N.Y.S.2d 48 [1st Dept. 2013] ). Defendant's explanations for its failure to comply with the order fell short of showing "a reasonable excuse for the failure to produce the requested items," including a proper Jackson affidavit ( Jackson v. City of New York, 185 A.D.2d 768, 770, 586 N.Y.S.2d 952 [1st Dept. 1992] ), and it made no showing of a meritorious defense, and therefore was not relieved from the dictates of the conditional order ( Gibbs, 16 N.Y.3d at 80, 917 N.Y.S.2d 68, 942 N.E.2d 277 ). Furthermore, because the court was explicit in the interim order as to what defendant was required to produce, and defendant had over a year to produce the requested documents before the conditional order was issued, there is no reasonable excuse for its failure to comply.
Defendant's argument that plaintiff's document demands were improper and should not have been enforced by the court is unavailing since it failed to timely object to the document demands and never sought a protective order pursuant to CPLR 3103 (see 3122[a]; Anonymous v. High School for Envtl. Studies, 32 A.D.3d 353, 358–359, 820 N.Y.S.2d 573 [1st Dept. 2006] ).
We have considered defendant's remaining arguments and find them unavailing.